State of Utah v. Luttmer

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Robert Thomas Luttmer,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000035-CA

F I L E D
February 15, 2001
  2001 UT App 43 -----

Fourth District, American Fork Department
The Honorable Howard H. Maetani

Attorneys:
L. Ronald Jorgensen, Sandy, for Appellant
Bruce R. Murdock and James Tucker Hansen, American Fork, for Appellee

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Before Judges Greenwood, Jackson, and Billings.

BILLINGS, Judge:

Defendant Robert Thomas Luttmer (Defendant) appeals his convictions of possession of drug paraphernalia, in violation of Utah Code Ann. § 58-37a-5 (1998), and interference with a police officer making an arrest, in violation of Utah Code Ann. § 76-8-305 (1999). Defendant claims the evidence presented to the jury was insufficient to support the guilty verdicts. We affirm both verdicts.

Defendant first argues that American Fork failed to show that Defendant possessed and intended to use paraphernalia officers discovered in Defendant's work truck. Section 58-37a-5(1) provides: "It is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to . . . store, contain, [or] conceal . . . a controlled substance . . . ." Utah Code Ann § 58-37a-5(1) (1998) (emphasis added). Utah courts have interpreted this statute to encompass constructive as well as actual possession. See, e.g., State v. Layman, 1999 UT 79,¶11, 985 P.2d 911. To prove constructive possession, it is necessary that "there [be] a sufficient nexus between the accused and the drug [or paraphernalia] to permit an inference that the accused had both the power and the intent to exercise dominion and control over the drug [or paraphernalia]." There must be facts which show that the accused intended to use the drugs or paraphernalia as his own. Id. at ¶13 (alterations in original, citation omitted).

Although the record contains conflicting testimony, when reviewing a conviction we consider the facts in a light most favorable to the verdict. See id. at ¶12. Thus we rely on the version of the facts which support the verdict. Defendant drove the truck to the recreation center where the officers encountered Defendant. Defendant regularly used the truck and stored his personal papers in it. His bag contained a key to the truck and Defendant led officers directly to the truck. The record also reflects that Defendant knew paraphernalia, a box which strongly smelled of marijuana, was in the truck. He reached under the seat where the box was found, failed to respond to officers questions about drugs in the truck and told officers he "was screwed." Defendant also struggled with the officers. These facts sufficiently support the inferences that Defendant had the power and intent to exercise dominion and control over the box and that he used the box to store marijuana. Therefore, we affirm the jury's verdict that Defendant possessed paraphernalia.

Defendant also argues he cannot be guilty of interfering with his arrest because the officers did not arrest him until after they pulled him out of the truck. Section 76-8-305 provides that a person interferes with his arrest if, knowing "that a peace officer is seeking to effect a lawful arrest or detention," he "interferes with the arrest or detention by: (1) use of force." Utah Code Ann. § 76-8-305 (1999) (emphasis added). Contrary to Defendant's argument, the statute does not require that Defendant be told he is under arrest prior to his interference. Rather, the statute requires knowledge that an officer seeks to effect an arrest or detention.

Viewing the facts in a light most favorable to the verdict, we conclude that at the least Defendant was aware that the officers were seeking to detain him when he resisted. The record indicates that the officers were investigating an alleged assault by Defendant. When Defendant was unable to produce identification on his person, they followed Defendant to the truck. The officers smelled marijuana and inquired about drugs in the truck. Defendant responded by reaching underneath the seat. The officers repeatedly requested that Defendant put his hands up. The officers then pulled Defendant from the truck, and Defendant struggled against them while they handcuffed him. Although Defendant was not under formal arrest until he was restrained, these facts support the inference that Defendant knew the officers were seeking to detain him when he resisted.

Therefore, we also affirm the jury's verdict that Defendant interfered with his arrest.
 
 
 
 

______________________________
Judith M. Billings, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge